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Cross-Border Shootings as a Test Case for the Extraterritorial Fourth Amendment

Ever since the Supreme Court’s 2008 decision in Boumediene v. Bush, courts and commentators alike have wondered about the relationship between the functional approach to the extraterritorial application of the Suspension Clause to non-citizens overseas that Justice Kennedy articulated therein and the Court’s far-more-formalistic rejection of extraterritorial Fourth Amendment rights for non-citizens in its 1990 decision in United States v. Verdugo-Urquidez. Put simply, is Verdugo-Urquidez‘s categorical rule still good law after Boumediene? This question has especial significance for foreign intelligence surveillance programs, many of which are premised on the assumption, post-Verdugo-Urquidez, that non-citizens lacking substantial voluntary connections to the United States have no Fourth Amendment protection whatsoever. And, if yesterday’s decision by the US District Court for the District of Arizona in Rodriguez v. Swartz is any indication, it’s a question the Supreme Court may soon have to answer.

The issue in Rodriguez is, unfortunately, not unique: Defendant Lonnie Swartz, a US Border Patrol agent, allegedly fired between 14 and 30 shots across the Arizona-Mexico border, hitting and killing Plaintiff Araceli Rodriguez’s son, who was allegedly unarmed and walking in the middle of a street at the time of the incident. Rodriguez brought suit for damages against Swartz, claiming that his allegedly excessive force violated her son’s rights under the Fourth and Fifth Amendments. Swartz moved to dismiss, arguing that Rodriguez’s son had no rights under the Fourth and Fifth Amendments, and that, in any event, he was entitled to qualified immunity.

As readers may recall, these facts are eerily reminiscent of the facts of Hernandez v. United States, in which the en banc Fifth Circuit held earlier this year that a Mexican national victim of a cross-border shooting had no Fourth Amendment rights — and that, assuming arguendo that he had Fifth Amendment rights, those rights were not “clearly established” at the time of the shooting. But in a 21-page ruling, Chief Judge Raner Collins disagreed with Hernandez, denying Swartz’s motion as to Rodriguez’s Fourth Amendment claim both because (1) the Fourth Amendment does apply to the cross-border shooting; and (2) based upon the allegations in the complaint, Swartz was not entitled to qualified immunity.

As he explained, “both Boumediene’s functional approach factors and Verdugo-Urquidez ‘voluntary connections’ test apply in this case.” Thus, “while [the victim’s] nationality weighs against granting him protection pursuant to the Fourth Amendment, his status as a civilian engaged in peaceful activity weighs in favor of granting him protection despite the fact that [he] was in the territory of another country when he was seized.” The court also relied heavily on the proximity of the shooting to the border, the decedent’s “strong familial connections to the United States,” and “the United States’ (and specifically the U.S. Border Patrol’s) de facto control and influence over Nogales, Sonora, Mexico.”

With respect to qualified immunity, Chief Judge Collins held that it was clearly established at the time of the shooting that “law enforcement officers could not use deadly force on an unarmed suspect to prevent his escape.” Although Swartz argued that it wasn’t clearly established that this Fourth Amendment principle applied to a cross-border shooting, the district court disagreed:

at the time he shot [the decedent], Swartz was an American law enforcement officer standing on American soil and well-aware of the limits on the use of deadly force against U.S. citizens and non-citizens alike within the United States. What Swartz did not know at the time he shot was whether [the decedent] was a United States citizen or the citizen of a foreign country, and if [he] had significant voluntary connections to the United States. It was only after Swartz shot [the decedent] and learned of [hi]s identity as a Mexican national that he had any reason to think he might be entitled to qualified immunity. This Court finds that Swartz may not assert qualified immunity based on [the decedent]’s status where Swartz learned of [hi]s status as a non-citizen after the violation.

Because Swartz would not be entitled to qualified immunity if the victim was a US citizen, the district court also disagreed with the en banc Fifth Circuit’s approach to cross-border qualified immunity (which the Fifth Circuit had considered in the context of the Fifth Amendment). As Chief Judge Collins explained, unlike the Fifth Circuit, “this Court does not characterize the question before the Court as ‘whether the general prohibition of excessive force applies where a person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred.’ Instead, this Court focuses on whether an agent may assert qualified immunity on an after-the-fact discovery that the individual he shot was not a United States citizen.” (In a nutshell, no.)

This strikes me as a very important ruling for two different reasons: First, the holding that the Fourth Amendment applies to a cross-border shooting of a Mexican national, if affirmed by the Ninth Circuit, would create a pretty direct circuit split with the en banc Fifth Circuit’s Hernandez decision — and therefore likely draw the attention of the Supreme Court. And given the Ninth Circuit’s somewhat more felicitous approach to extraterritorial constitutional rights, this strikes me as a more than decent probability. Thus, it may only be a matter of time before the Supreme Court is forced to resolve the relationship between Boumediene and Verdugo-Urquidez — which could have consequences far beyond the specific context of cross-border shootings.

Second, the qualified immunity analysis highlights an already existing circuit split between, among other rulings, the en banc Fifth Circuit’s analysis in Hernandez and the Ninth Circuit’s 2005 decision in Moreno v. Baca, which held that qualified immunity cannot turn on after-the-fact factual discoveries, as opposed to what the officer knew or reasonably could have known at the time the constitutional violation took place. So long as Moreno is on the books, the Ninth Circuit can’t avoid the merits question merely by holding that Swartz is entitled to qualified immunity, since it seems pretty clear that, if the Fourth Amendment applies, then on the facts as alleged in the complaint, he’s not.

All of which is to say that, although this is only a district court decision, it could prove to be a critical test case not only for the applicability of the Fourth Amendment to cross-border shootings, but for the Fourth Amendment’s extraterritorial applicability and scope far more generally…

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).